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June 9, 1986

John Edmund Lawson, Jr., Plaintiff,
M. Peter McPherson, Administrator, Agency for International Development, Defendant

The opinion of the court was delivered by: FLANNERY

 Thomas A. Flannery, Judge

 This matter came before the court at a trial held on February 3 - February 10, 1986. Having heard oral argument of counsel on April 14, 1986, and having reviewed the entire record herein, the following Findings of Fact and Conclusions of Law are entered this 6th day of June, 1986.

 Findings of Fact

 1. Plaintiff, Dr. John Edmund Lawson, Jr., a white male, has been employed by defendant Agency for International Development (hereinafter "AID") since 1973, first as a Social Science Analyst and then (since 1976) as a GS-14 Statistician/Demographer, in what is currently known as the Bureau for Science and Technology, Office of Population. Tr. 2, 3, 7; Def. Ex. 23.

 2. Dr. Lawson holds B.A., M.A., M.P.H., Ph.D., and J.D. degrees. Tr. 2-3; Def. Ex. 23.

 3. Plaintiff challenges defendant's selection of Dr. Sarah Clark, a white female, to the position of Division Chief of the Office of Population. Dr. Lawson and three others, including Dr. Clark, had been interviewed for the position for which Dr. Clark was selected in January, 1981. Pl. Ex. 9.

 4. On November 12, 1978, defendant agency detailed Dr. Clark, who was then a GS-13, into the GS-15 position as Division Chief of the Office of Population. Tr. 7, 109-110; Pl. Ex. 7 at p. 3. Although Office of Personnel Management (OPM) guidelines prohibit details of more than 120 days, Dr. Clark remained in that detail for over two years before her formal, permanent selection to the position. Pl. Ex. 7, 9, 31. In fact, the detail had never received OPM's prior approval; a retroactive request for the detail was made only at or near the time the 120 days had passed. At best, therefore, Dr. Clark's detail was valid only through July 24, 1979. Id.

 5. Dr. Clark was neither qualified nor eligible for this GS-15 position at the time of the detail: an employee must have at least one year of experience in the next lower grade before she is eligible for promotion to the higher grade. Tr. 231-232, 725; Pl. Ex. 8. At the time of the detail, Clark was a GS-13. Tr. 551. She was not promoted to the GS-14 level until August 1979, almost a year after her detail began. Tr. 368, 552. She would not have been eligible, therefore, for the position until August, 1980, almost two years after she was detailed into the position.

 6. Defendant's contention that when Dr. Clark's detail ended in July, 1979, she was transferred back to a regular position in the policy division, is not supported by the record. First, a memo from the AID personnel office dated September, 1980, states that no such action was documented in Dr. Clark's personnel file. Pl. Ex. 7 at 3. Second, although Dr. James Brackett would have been her supervisor and Dr. Clark's rater for performance evaluation purposes had such a transfer occurred, Dr. Clark's performance evaluation for the period November, 1978, through December 31, 1979, indicates that Patricia Baldi and Joseph Speidel were, in fact, her supervisors who rated her during that period. Def. Ex. 18.

 7. Similarly, defendant's contention that the detailing was only meant to be temporary since the agency had recruited an outside candidate (Dr. Gayl Ness, a professor at the University of Michigan) for the position, is without merit. As testified at the trial and as stated by defendant's counsel at oral argument, that recruitment process, done under the Intergovernmental Personnel Act, would have required at least a year to process. Further, Dr. Ness had stated that he would be unable to assume the position until mid-1980, the end of the academic year. Thus, it should have been known that Dr. Ness could not have been hired within 120 days -- the maximum possible detail -- and defendant should have rotated the detail among other qualified individuals in the office.

 8. On August 26, 1980, and coincidentally two weeks after Dr. Clark became time-in-grade eligible for promotion to the GS-15 level, defendant agency completed a staffing pattern action request (SPAR) which began the process for filling the position as division chief. Def. Ex. 7.

 9. On December 5, 1980, the position was advertised. Tr. 11, 626; Pl. Ex. 8. The evidence indicated that the evaluation or selection criteria were prepared by Dr. Clark. Tr. 11, 20-21, 110, 218A, 228A; Def. Ex. 9. Dr. Clark's preparation of the selection criteria unfairly created the strong possibility that the criteria would track her qualifications and thus enhance her chance of being selected.

 10. Four candidates applied for and were certified as "best qualified" for the position, including Dr. Lawson. A fifth employee requested ...

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